COURT FOR THE COUNTY OF 
| Chapter 21: Expert Testimony |
21-1 Admissibility of Expert Testimony
In People v Beckley, 434 Mich 691, 711 (1990), the Michigan Supreme Court articulated a three-part test for determining the admissibility of expert witness testimony under MRE 702:
1. the expert must be qualified;
2. the evidence must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue; and
3. evidence must be from a recognized discipline.
Michigan applies the test of Frye v United States, 293 F 1013 (1923), in determining whether expert testimony is admissible. People v Pullins, 145 Mich App 414 (1985). The Frye test provides that for expert testimony to be admissible, the basis of the expert's testimony "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id.
In Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579, 587; 113 SCt 2786; 125 LEd2d 469 (1993), the United States Supreme Court held that Federal Rule of Evidence 702 supersedes the Frye test. Under Federal Rule of Evidence 702, the trial judge must make sure that all scientific testimony or evidence that is admitted is relevant and reliable. Id. at 589. The Court reasoned that requiring an expert's testimony to pertain to "scientific knowledge" would establish a standard of evidentiary reliability. Id. at 590. The Court defined "scientific" as "grounding in methods and procedures of science." Id. It defined "knowledge" as more than subjective belief or unsupported speculation, or "any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Id. "Pertinent evidence based on scientifically valid principles will satisfy those demands." Id. at 597. In Kumho Tire Co Ltd, et al v Patrick Carmichael, et al, 526 US 137, 119 SCt 1167, 143 LEd2d 238 (1999), the Supreme Court held that a federal court's obligation under FRE 702 and Daubert, supra, to ensure that expert testimony is both relevant and reliable, applies not just to scientific testimony, but also to technical or other expert testimony.
Although Michigan courts do not use the Daubert standard because they are "bound to use the Davis-Frye standard until the Michigan Supreme Court overrules or modifies its decision in this area," People v McMillan, 213 Mich App 134 (1995), you may want to use Daubert as persuasive authority. See People v Bullock, 440 Mich 15, 27 (1992) [holdings of the United States Supreme Court are only persuasive authority for purposes of the Michigan Supreme Court's interpretation of and application of the Michigan Constitution; the Michigan Supreme Court is the ultimate authority on the meaning or application of Michigan law].
The decision to admit or deny expert testimony is within the discretion of the trial court and will not be reversed absent abuse of discretion. Beckley, above, 491 Mich at 711. Experts should not be allowed to testify if the jury is in as good a position as the expert to determine the issue involved without enlightenment from someone with specialized knowledge. Franzel v Kerr Mfg. Co., 234 Mich App 600 (1999). Furthermore, MRE 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
The determination of a witness's qualifications as an expert is within the trial court's discretion and will not be overturned absent abuse of discretion. People v Gambrell, 429 Mich 401 (1987). In exercising its discretion, the trial court should not require the proposed expert witness to satisfy an overly narrow test of qualifications. People v Whitfield, 425 Mich 116 (1986). The degree of expertise properly goes to the weight of the expert's testimony rather than its admissibility. People v Whitfield, supra; People v Gambrell, supra. The trial court may consider the proposed expert witness's other trial experience when determining whether the witness is qualified as an expert. People v Lewis, 160 Mich App 20 (1987).
21-2 Admitting Syndrome Evidence
Syndrome evidence can be very dangerous or very helpful. For certain types of syndrome evidence, Rape Trauma Syndrome, for example, you may want to file a motion to preclude expert testimony. Other types of syndrome evidence, such as Battered Woman Syndrome, you may want to try to enter into evidence. Expert testimony on Battered Woman Syndrome is admissible when the witness is properly qualified and the testimony is relevant and helpful in understanding an issue in the case. People v Christel, 449 Mich 578 (1995). MRE 702 governs the admissibility of expert testimony, and provides that if the court determines that "recognized scientific, technical, or other specialized knowledge" will aid the jury in understanding the evidence or determining a fact in issue, "a witness, qualified as an expert by knowledge, skill, training, or education" may testify on that issue "in the form of an opinion or otherwise." To establish the expertise of the witness, questions should include:
1. the witness's basic education, specialized education and training, degrees, licenses, teaching experience, professional writing, awards, other recognition, professional organizations;
2. the number of items the witness has previously performed the test/evaluation;
3. the number of times the witness has been qualified as an expert before; and
4. the witness's familiarity with the parties and the issue in dispute.
21-3 Precluding Syndrome Evidence
Expert testimony on Rape Trauma Syndrome (RTS) is admissible for rebutting an inference that the complainant's post-incident behavior was inconsistent with that of an actual victim of sexual abuse, incest or rape. See Beckley, 434 Mich at 705. Most RTS testimony in this regard tells the jury that one or more recantations by the complaining witness are symptoms of RTS, rather than simply recantations. There are, however, some limitations on the expert's testimony. People v Peterson, 450 Mich 349 (1995) specifies that:
1. the expert may not testify that the alleged criminal sexual conduct occurred;
2. the expert may not testify as to whether the victim is telling the truth or vouch for the victim's veracity, but may only help the jurors assess the victim's credibility; and
3. the expert may not testify as to whether your client is guilty.
See also People v Hamilton, 163 Mich App 661 (1987).
Expert testimony regarding RTS is not admissible to prove that a rape in fact occurred. Frye v US, 54 US App DC 46, 293 F 1013 (1923); People v Draper (On Remand), 188 Mich App 77 (1991); People v Garrison (On Remand), 187 Mich App 657 (1991); People v Hurt, 211 Mich App 345, depublished 450 Mich 961 (1995); People v Pullins, 145 Mich App 414 (1985) [but no opinion on the propriety of expert testimony on RTS if the Frye test is met when consent is the defense].
In order to exclude such evidence, you will want to try to show the court that the evidence is unreliable and unduly prejudicial to your client and that it is likely to mislead the jury. You will want to ask the court to exclude RTS evidence based on these grounds or, in the alternative, to hold an evidentiary hearing in which you can cross-examine the proposed expert witness. If both of these requests are denied, you will want to ask the court, as a much less favored alternative, to allow you to voir dire the proposed expert witness outside the presence of the jury. You may need to renew your motion.
The prosecution may seek to introduce drug-profile evidence by a police expert. In order to be admissible, the drug profile evidence must be offered as background or modus operandi evidence, not as substantive evidence of guilt, something more than drug profile evidence must be admitted to prove the defendant's guilt, the trial court must instruct the jury that the evidence is to be used only as background evidence, and the expert may not express an opinion that, based on the profile, the defendant is guilty (and may not compare defendant's characteristics to the profile to imply that defendant is guilty). People v Murray, 234 Mich App 46 (1999).
21.3 Motion To Preclude Rape Trauma Syndrome Evidence [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
The Defendant, 
, by 
attorney, moves this Court to preclude any and all expert
testimony on Rape Trauma Syndrome, or in the alternative to hold an evidentiary hearing. This motion is based on
MCR 403 and the following reasons:
1. 
was charged with 
, in violation of 
.
2. The prosecution has proposed to admit into evidence expert testimony on Rape Trauma Syndrome.
3. The decision to admit or deny expert testimony is within the discretion of this Court. People v Beckley, 434 Mich 691, 711 (1990).
4. The trial court must make sure that all scientific evidence or testimony is relevant and reliable. Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579, 589; 113 SCt 2786; 125 LEd2d 469 (1993). While the Michigan Supreme Court has not decided whether to adopt the Daubert standard, its reasoning is helpful.(1)
5. All testimony must be legally relevant. MRE 402; People v Peterson, 450 Mich 349, 363 (1995).
6. The proposed expert testimony is neither legally relevant nor is it reliable.
7. In addition, the probative value of this expert testimony is substantially outweighed by the
and therefore should be excluded.
For these reasons, 
requests that this Court grant his request to preclude any and all
evidence on Rape Trauma Syndrome, or in the alternative to hold an evidentiary hearing in which the Court can
determine whether the probative value of such evidence is outweighed by the danger of prejudice, confusion of the
issues or misleading the jury.
Respectfully submitted,
___________________
Attorney for Defendant
1. 1 Please note that the Michigan Supreme Court is the ultimate authority on the meaning and application of Michigan law. Holdings of the United States Supreme Court are persuasive authority for purposes of the Michigan Supreme Court's interpretation and application of the Michigan constitution. See People v Bullock, 440 Mich 15; 485 NW2d 866 (1992).